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Highlights from Egypt’s Draft Constitution (Part 2)

On December 2, 2013, head of the fifty-member Constituent Assembly Amr Moussa presented the full text of the draft Constitution to interim president Adly Mansour, who is expected to approve it promptly. The draft comes into an Egypt that finds itself mired in political tension, unresolved issues of transitional justice, and attempted usurpations of the January 25 Revolution. While not the sole factor in determining the trajectory of the country’s transition and roadmap, the Constitution is bound to establish a legal system which colors what is to come; for this reason, it is instructive to analyze this Constitution and revisit what is a colorful national history of constitutional and legal debate.

This piece is the second in a two-part series. It will delve into the government structure, the Armed Forces, and the rights of women and marginalized groups. The first installment in this series explored the role of religion and the identity of the state.

The Government Structure

Historically, Egypt has maintained a semi-presidential system with a bicameral legislature. Both the 1971 and 2012 Constitutions set forth the President as the head of state and the Prime Minister as the head of government. Both documents also handed the Shura Council (the upper house) consultative powers, while the People’s Assembly was granted the majority of legislative powers.

While the government’s structure has largely remained the same in the country’s recent history, debates remain as to what the ideal form of governance would be for Egypt. The current draft maintains the semi-presidential system, establishing the President as the head of State and the Prime Minister as the head of government. The President is elected for a term of four years, renewable only once; he can be impeached upon a 2/3 parliamentary vote finding him guilty of violating the provisions of the Constitution, treason, or a felony, as per Article159. Cancelling the bicameral legislature in a contested move, the Constituent Assembly has decided to set forth only one body of Parliament, to be named the House of Representatives and to be made up of at least 450 members. The consultative Shura Council has been done away with, thus all legislative powers lie within a single body.

Governing the upcoming parliamentary and presidential elections, transitional Articles 229 and 230 were amended in a last minute move by the Assembly. The texts of the articles now give the interim President the discretion to determine whether presidential elections may come before parliamentary elections despite the 2013 Constitutional Declaration which laid out the country’s current roadmap to the contrary. It is not yet clear how the interim President will proceed on this issue, but it certainly reflects a deep political disagreement on which set of elections should come first.

Retained for almost five decades after being introduced by former President Gamal Abdel-Nasser in 1964, a 50 percent parliamentary quota of farmers and workers has been cancelled in the current Constitutional draft. However, two transitional Articles 243 and 244 state that farmers, workers, youth, Christians, and individuals with disabilities should have appropriate representation in Parliament. The Articles do not delve into specifics and do not consider women to be a marginalized group; regardless, the issue of parliamentary quotas remains a particularly contentious issue as made clear by the fact that these two articles were initially unable to garner sufficient votes to pass.

The Armed Forces

As one of the strongest institutions in the Egyptian state, the country’s military has long exercised both hidden and public political power, enjoyed widespread popular support, and accrued economic benefits through its involvement in a number of industries. Consequently, the constitutionally-defined role of the Armed Forces is an important area of consideration.

The 1971 Constitution established the Armed Forces as an entity belonging to the people with the “duty to protect the country, its territorial integrity and security.” It also set up the National Defense Council to examine matters pertaining to “ensuring the safety and security of the country.” Article 150 of the document specified the President as the “Supreme Commander of the Armed Forces” and granted him the authority to declare war. Following the SCAF-issued 2011 Constitutional Declaration and the 2012 Constitution, the power and authority of the Armed Forces was expanded within the Constitution and laid out in more explicit detail. The 2012 text stated that the Minister of Defense would be a military officer and split the National Defense Council into a civilian-based National Security Council and a largely-militarily-dominated National Defense Council; the latter would be responsible for matters relating to the safety and security of the country and the military’s budget and consulted on all draft laws related to the Armed Forces. The Constitution also stated that civilians could face military trials for “crimes that harm the Armed Forces,” as laid out by Article 198; this was the first time that an Egyptian constitution explicitly enshrined the possibility of civilians undergoing a military judicial system.

In the current Constitutional draft, the Armed Forces maintain much of the power and autonomy that they have long enjoyed. While the President remains the “Supreme Commander of the Armed Forces,” Article 201 establishes the Minister of Defense as the Commander-in-Chief of the Armed Forces and states that he will be selected from among its officers, thus ending stipulations on the possibility of a civilian Minister. The draft also includes a transitional Article 234 that states that the Minister will be selected with the approval of the SCAF for two presidential terms, or eight years. The current Constitution maintains the same dichotomy between the National Security Council, which remains largely civilian, and the National Defense Council, which remains largely militarily-dominated, as set forth by the 2012 Constitution. The National Defense Council again maintains significant control over the budget of the Armed Forces. On the issue of military trials for civilians, Article 204 establishes the possibility that civilians may undergo such trials in situations that involve direct attacks on the Armed Forces and the institution’s manifestations. The extensive list of ways in which the Armed Forces may be harmed and the broad language of the article establishes an environment that will condone military trials much like those that took place under the 2012 Constitution.

The Rights of Women and Marginalized Groups

In a country that continues to contend with sex-linked social issues, such as female genital mutilation, child marriage, and sex trafficking, enshrining rights for women in the Constitution is a matter that remains of the utmost importance. Similarly, other marginalized groups in Egyptian society require greater protections.

Although Article 11 of the 1971 Constitution technically ensured the equality of women with men in the “fields of political, social, cultural and economic life,” it did so only to the extent that such equality did not “[violate] the rules of Islamic jurisprudence,” thus creating a situation in which women’s rights could be infringed upon under the pretence of religion. Furthermore, the text of Article 11 and similarly, Article 10 in the 2012 Constitution, stressed that the State’s role was to guarantee harmony between women’s duties to family and to work. Rather than preserving this choice of priorities for women themselves, the State determined to define the female identity and capacity. Much of the language of the original Article 11 was again reiterated in the draft put forward by the ten-member Constitution Amending Committee.

In the current Constitutional draft, Article 11 emphasizes the equality between women and men in “civil, political, economic, social, and cultural rights, in accordance with the principles of the Constitution.” While the article is no longer contingent on “the rules of Islamic jurisprudence,” marking a significant step away from a legal loophole which could have been used to further constrain the rights of women as per more conservative interpretations of Islam, the new contingency on “the principles of the Constitution” is suspect and could potentially serve as an indirect means by which to limit the rights of women. On a more positive note, the article, for the first time, calls upon the State to protect women from violence committed against them. However, the article does maintain a clause that guarantees the harmonization between the woman’s duty to her family and to her work; such an article, as iterated earlier, imposes a traditional definition of the family upon Egyptian women that has historically put the burden on women and marginalized men from the child-rearing process.

Aside from the 2012 Constitution’s Articles 70-71 on the rights of children and Article 72 on the rights of the disabled, protections for members of marginalized groups in Egypt have been remarkably limited. In the current draft of the Constitution, Article 80 sets forth the rights of children, including but not limited to the right to be free from sexual exploitation and all forms of violence. Article 81 establishes the duty of the state to ensure the economic, social, cultural, recreational, sports-related, and educational rights of the disabled, as well as their rights to work and engage in political life.

Ultimately, while older constitutional texts also enshrined the principles of equal protection and the equality of all citizens irrespective of factors like “religion, creed, sex, origin, race, color, language, disability, social status, political affiliation, or geographical identity” as Article 53 in this draft of the Constitution does as well, the reality is that minorities continue to be marginalized in practice. This is despite Egypt’s accession to international conventions mandating legal protections for such groups.

Despite the lofty rhetoric of such articles, children continue to be prosecuted in the judicial system and disabled Egyptians continue to be marginalized in society; implementing legislation and coordinated efforts by non-governmental organizations will be key in ensuring that these constitutional articles are not violated.

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As Egyptians prepare to vote on the Constitutional draft and its language on the structure of government, the power of the Armed Forces, and the rights granted to the country’s minorities, much of the future of Egypt’s social strata, the strength of its political system, and the checks and balances upon the country’s institutions is being crafted. Ultimately, there is no doubt that the final draft of the Constitution, while not the sole or necessarily definitive factor, will have a significant and lasting impact on the shape that the modern and post-revolutionary Egyptian state will take.

Special thanks to David Johnson who provided editorial guidance on the writing of this article.

Mai El-Sadany is a law student at the Georgetown University Law Center, with an intent to focus on international and human rights law in the context of Middle East politics.